Papa was a great big man from Togo. His estranged wife once tried to run him over – he had the ripped jeans to prove it. Whenever he came to the office to work on his case, he brought those ripped jeans with him in a plastic shopping bag — as if no one would believe him without the jeans in his possession.
We learned that Papa originally came to the United States to study at a local college, but found himself out of money and out of status within a year. When I met him, he was working illegally as a line cook, sweating every night over grilled racks of ribs and ribeyes at a local chain restaurant. Papa’s wife, a U.S. citizen, used his immigration status and the promise of a green card to control him. However, she never filed for Papa’s green card and it seems likely she never planned to do so.
After listening to Papa’s story, we felt strongly that Papa qualified for lawful permanent resident status as the abused spouse of a U.S. citizen. We submitted the appropriate forms, a statement from Papa and supporting evidence to U.S. Citizenship and Immigration Services. Papa asked if we could mail in the actual pair of jeans as an exhibit, but we assured him that a photo would do. It worked. Papa was granted lawful permanent residence, which eventually led to U.S. citizenship.
Papa gives our firm much of the credit for the outcome of his immigration case; but, actually, the family lawyer who handled Papa’s divorce deserves just as much. If not for his insistence that Papa see an immigration lawyer, Papa might still be sweating it out illegally.
In the context of separation and divorce, there can be detrimental immigration consequences for any family members who are not U.S. citizens. I cannot count the number of times I have discovered that a noncitizen finalized his or her divorce, without a single consultation from an immigration attorney along the way. Family law attorneys should ask clients about their immigration status up front. The categories below address the most common statuses and immigration issues that are likely to come up for family law attorneys:
U.S. Citizens: A U.S. citizen’s immigration status is not in jeopardy, but what about the U.S. citizen’s spouse or stepchildren? The U.S. citizen may be asked to complete the immigration process for the spouse and stepchildren even though the citizen wants to end the relationship as quickly as possible. Or perhaps the spouse will demand more money per the support obligations that the U.S. citizen agreed to, if the immigration process was completed for the spouse.
Lawful Permanent Residents: In most cases, lawful permanent residents are given permission to live and work in the United States permanently. Lawful permanent residents with a green card valid for 10 years are safe and will not be affected by separation or divorce. However, if the green card is only valid for two years, then the client has a problem. This status is called conditional residence. In order for the client to convert to unrestricted permanent resident status, the couple must file a joint petition together within the three-month period before the card expires. Or, the client must apply on his or her own, with a request for a waiver of the joint filing requirement. This can be tricky.
Noncitizens who are undocumented, out of status or have filed paperwork in the past: These types of cases are extremely difficult, often impossible; however, there is always the possibility that an immigration option exists. If a petition or application has been filed in the past or is currently pending, look into whether or not there is an immigration benefit available.
Noncitizens in dependent status or spouses of temporary visa holder: Typically, these spouses are married to foreign nationals working in H-1B, L, or E status or going to school in F-1 status. The dependent spouse remains in dependent status as long as the primary visa holder remains in status and the couple continues to be married. A final divorce, not separation, terminates the dependent spouse’s status. If divorce is imminent, the dependent spouse may be able to change to another type of immigration status.
The earlier immigration attorneys know about an impending divorce, the more likely they can come up with a plan to address any immigration complications. It is inevitable that family law will run into immigration law from time to time and vice versa with cases like noncitizen victims of domestic violence, child custody when one or both parents are noncitizens, and international adoption. Immigration attorneys and family law attorneys must reach out to each other on these issues to make sure clients like Papa do not get run over in the process.
- By Ame Coats
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